Responsibility Without Scapegoating
Harold J. Bursztajn, MD
Archie Brodsky, B.A.
Health Decisions, A Publication of the Vermont Ethics Network,
May 1997
Harold J. Bursztajn is Co-director of the Program
in Psychiatry and the Law and Associate Clinical Professor, Department
of Psychiatry, Harvard Medical School at the Massachusetts Mental Health
Center, Boston, Massachusetts. Archie Brodsky, BA, is Senior Research
Associate Program in Psychiatry and the Law, Harvard Medical School at
the Massachusetts Mental Health Center, Boston, Massachusetts
The advent of managed care has brought into focus some age-old questions
of personal versus institutional responsibility. On the legal front,
these issues are being fought out in increasingly successful efforts
to hold managed care organizations (MCOs) liable for damages caused by
their denial of coverage for health services. Physicians understandably
do not want to be held to the standards of care set by their profession
when insurers will not support the level of care needed to meet those
standards. Yet if the balance shifts too far in the direction of liability
for MCOs, professional standards of care that are essential to maintain
could be obscured.
To complicate matters further, managed care came along in the midst of
a historic restructuring of responsibility in the physician-patient relationship.
During the past few decades, the legal doctrine of informed consent has
evolved to protect a person's right to choose what, if any, medical treatment
he or she is to receive. No longer can a physician touch, operate on,
or prescribe for a patient unless the patient consents after being informed
of the risks and benefits of the recommended procedure and any available
alternatives. Thus empowered, thc patient shares responsibility for the
outcome.
There is no question that managed care, by taking away some decision-making
authority from both parties, threatens to upset the delicate dialogue
that patients and physicians have been working out between them. But
it is an overreaction to assume that managed care has doomed the ethical
practice of medicine. We can respond to the current ethical crisis most
constructively by including MCOs in this balance of power--and in the
accountability that comes with authority and responsibility. decisions
of the patient or MCO is to impose responsibility without authority.
The patient, drawing upon his or her personal experience and values,
is responsible for choosing a course of action in collaboration with
the physician. If that course of action is not successful, we should
resist the temptation to blame the victim. who is. after all. a Ethical,
effective decision making is shared decision making, and now there are
three decision makers instead of two.
What would a tripartite model of shared responsibility look like? We would
propose the following general principles, while granting the complexity
of working out the detailed applications to different situations. The
physician, patient, and MCO all have different spheres of authority and
different forms of responsibility flowing from that authority. The physician,
drawing upon professional training and skill, is responsible for making
recommendations that meet professional standards of care, as well as
for advocating for coverage for treatments that the patient and physician
together have decided upon. On the other hand, to scapegoat the physician
for the decisions of the patient or MCO is to impose responsibility without
authority. The patient, drawing upon his or her personal experience and
values, is responsible for choosing a course of action in collaboration
with the physician. If that course of action is not successful, we should
resist the temptation to blame the victim, who is, after all, a person
coping with pain, fear, and perhaps disability. The MCO is responsible
for providing financial benefits on contractual terms reasonably interpreted.
But it is no more ethical to scapegoat the MCO for clinical errors than
to scapegoat the physician for the MCO's denial of benefits. Moreover,
such opportunistic blame-shifting would contribute to the erosion of
professional standards.
The Nuremberg Code for medical experimentation begins with the statement
that "the voluntary consent of the human subject is absolutely essential." Applying
this principle to the provision of clinical care, we would find it violated
if patients were treated as a captive population or kept uninformed about
the available options. In a competitive marketplace, MCOs are entitled
to provide as broad or as narrow coveragc as they choose, provided that
prospective members are informed in advance of the limits on benefits
and are free to go elsewhere. With these critical safeguards, MCOs should
be able, ftor example, to require that their members engage in specified
health-promoting behaviors. MCOs should not be asked to assume the governmental
responsibility of providing universal coverage. But they should be held
accountable for discharging their own responsibilities in a spirit of
full disclosure and equitable application, dialogue, and rapid and independent,
expert-informed dispute resolution. The emerging area of mediation via
expert-informed, alternative dispute resolution holds promise as a pathway
to accomplish this goal of mutual responsibility.